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Papa John’s settles texting suit

Last year a class action law suit was filed against Papa John’s for violation of the Telephone Consumer Protection Act (TCPA) for texts received by Papa John’s customers. Customers allege they never opted in to receive promotional text from the company. Papa John’s claim that they didn’t send the marketing, but instead was sent by third party contractors.

[Plaintiff’s lawyer] McCue recently represented a plaintiff before the FCC, which resulted in a ruling clarifying that companies who contract other firms to make illegal phone calls can still be held liable under the TCPA. The rule could have hurt Papa John’s claim that it was their marketing contractor, not them, which sent the unwanted texts, had the lawsuit ever gone to trial. The FCC ruling further noted that the company selling the product in question is more likely to be held vicariously liable for phone calls or texts if it authorized the marketers to act on its behalf and use its brand name, and if it helped design training sessions or provide information about the product to the people actually making the calls. “This Order is very significant for consumers as it sets forth the circumstances pursuant to which defendants will be liable for telemarketing acts of third parties in violation of the TCPA,” the attorney says.”Enforcement of the TCPA is the only realistic means in which consumers can address and prevent illegal telemarketing.”

The FCC ruling doesn’t impact email marketing, but the revised definition of “initiate” may have roots in the CAN SPAM act. CAN SPAM also uses the “initiate” terminology to designate who sent or procured an email to be sent. The FCC ruling states.

we clarify that while a seller does not generally “initiate” calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers. Dish Network Settlement with FCC.

Overall, it seems Papa John’s has discovered that hiring someone to do their law breaking for them doesn’t necessarily mean they’re off the legal hook. It’s probably too much to hope that real companies will be held accountable for the spam sent advertising their products and services.

You can't technical your way out of the bulk folder. I wrote that a year and a half ago, and it's even more true today. Filters at the big webmail providers continue to evolve to meet new threats and new spamming techniques. Sending technically perfect mail won't get your mail into the inbox. Recipients have to want the mail and interact with the mail for good delivery.
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